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June 6, 2017

EMPLOYERS BEWARE! YOU MAY BE LIABLE FOR AGENTS' AND EMPLOYEES' ACTS

In
Maryland an employer can be liable for the negligence of an "agent,
servant, or employee." The legal term for this is "respondeat superior." In
Latin this literally means "let the master answer." First, while we often hear the word "negligence,"
what does it mean in this context? In general, negligence is a breach of a duty owed that
"proximately" (or directly) causes the alleged harm. This is a threefold test and all three elements above are required to
establish negligence. Therefore, questions arise in evaluating an employer's responsibility for an
employee's negligence include: Is the
person someone to whom a duty was owed? What is the applicable
"standard of care" (this varies depending on the context)? Was there any intervening act or omission that
caused or contributed (called "contributory negligence") to the alleged negligence? If so, does
this break the "chain of causation?" Applying this to the employer context, an employer can be held
"vicariously liable" for negligent acts of an agent, servant or employee.

Who is
an "agent, servant or employee?" The definition of an employee was
discussed at length in a previous blog written by Maryland business attorney Katherine Taylor (Employee or Contractor?).
An agent is someone doing something on behalf of an employer, who Figuratively stands
in the shoes of an employer and acts on his or her behalf. The arcane term Servant" comes
from early Maryland common law and does not mean "servant" in the way we think of it today.
Instead, it is basically another term for employee.

Under
what theory does someone sue an employer for negligence of an employee? The Theory is that an employer is responsible for the acts of an
employee. Are there any prerequisites? An employee must be "acting within the scope of
employment" before employer liability can attach. How does this work in the real world? Say an employee is
driving a delivery truck for an employer and causes an accident. The first question to ask is whether
the employee was acting on behalf of the employer. For example, when and where did the accident
happen? Was the employee using the truck during regular work hours? Was the employee on a
"mission" for the employer or was the employee doing personal business unrelated to the employer? Did the
employee have a valid license? Did the employee have training or ability to drive the type of
truck? Did the employee have a good driving record? If not, did the employer know this or should the
employer have know about this? Was the employer aware of any issue that should have prevented this
employee from driving this truck for this mission?

As you
can see, there are many issues that can arise in the employer/employee context. What can an employer do to reduce the chances of being held
liable for an employee's negligence?

The following tips can help:

1.
Carefully screen and interview potential employees to make sure they are a good fit for you and your business.

2. Do a
background check, including driving record and criminal history.

3.
Check references.

4. Communicate clearly what is expected and what
is prohibited during employment hours.

If an
issue arises, you should think about contacting a Maryland business attorney who can help you
wade through the many layered issues in an employer liability case. A business lawyer experienced in this area can help you evaluate the facts, understand the law, advise you, and
assert any available defenses on your behalf.

Katherine Taylor is a Maryland business attorney who has extensive experience dealing with employer/employee issues. Go to www.taylorlegal.com for more information.

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